United Electrical, Radio and Machine Workers of America

National Labor Relations Board - Board Decisions

Jul 23, 1951

95 N.L.R.B. 391 (N.L.R.B. 1951)

UNITED ELECTRICAL, RADIO AND MACHINE WORKERS, ETC. 391
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL
1412 and THOMAS WOOD
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA,
LOCAL 1412, 'SANDRA M. WAITE, WILLIAM B. STEVENSON AND
WILLIAM ELCONIN and GARDNER ELECTRIC MANUFACTURING COM-
PANY. Cases Nos. 20-CB-164 and 20-CB-165. July 03, 1951
Decision and Order
On March 21, 1951, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
'of the Intermediate Report attached hereto. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report, and a brief in
support. thereof. The Employer, a charging party, filed a brief in
support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
:adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following' additions and modifications :
1. The Trial Examiner found • that by attempting to force the re-
duction in seniority of Thomas Wood, Jess Perry, and Carl Sullivan
because of their loss of membership in good standing in the Respond-
ent Union-thus attempting to cause the Employer to discriminate
against such employees in violation of Section 8 (a) (3) of the Act-
the Respondent violated Section 8 (b) (2) of the Act.. We agree.
The Respondent Union had not secured a certification pursuant to
Section 9 (e) of the Act. Accordingly, an attempt to cause the Em-
ployer.so to discriminate, implemented as it was by a strike, violated
Section 8 (b) (2) of the Act.'
2. We also agree with the Trial Examiner that, in striking for the
purpose of attempting unlawfully to cause the Employer to discrimi-
nate against employees, the Respondents restrained and coerced em-
1 See International Brotherhood of Teamsters , Chauffeurs, Warehousemen h Helpers of
America, et at. (Frank Boston ), 94 NLRB 1494, and cases cited therein.
95 NLRB No. 47.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the exercise of the rights guaranteed by Section 7 in viola-
tion of Section 8 (b) (1) (A) of the Act.2
The Remedy
Having found that the Respondents engaged in unfair labor prac-
tices, we shall order them to cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the
Act. However, for the reasons stated in the Colonial Hardwood
case ,3 we shall not adopt the recommendation of the Trial Examiner
and order the Respondents to make whole Thomas Wood, Jess Perry,.
and Carl Sullivan for the amounts they would have earned but for
the strike during the period from October 30 to November 8, 1950.
Order
Upon the entire record in the case,- and pursuant to ;Section.10 (c)^
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, United Electrical, Radio
and Machine Workers of America, Local 1412, its officers, agents,.
'representatives, successors, and assigns, and the Respondents Sandra
M. Waite, William B. Stevenson, and William Elconin and each of
them shall :
1. Cease and desist from :
(a) By any strike, slowdown, work stoppage, or threat thereof, or-
in any other manner causing or attempting to cause Gardner Electric
Manufacturing Company, its officers, agents, successors, or assigns to,
discriminate against Thomas Wood, Jess Perry, or Carl Sullivan,.
or any other employee, in violation of Section 8 (a) (3) of the Act, by
reducing or taking away from Thomas::Wood,--Jess Perry; or Carl
Sullivan, or any other employee, his seniority rights or in any other
manner causing or attempting to cause Gardner Electric Manufac-
turing Company, its officers, agents, successors, or assigns to discrimi-
nate against Thomas Wood, Jess Perry, or Carl Sullivan, or any
other employee, in regard to his hire or tenure of employment or any
term or condition of employment.
2 See Pinkerton's National Detective Agency, Inc., 90 NLRB 205, and cases cited therein.
United Furniture Workers of America, CIO, et al . (Colonial Hardwood Flooring Com-
pany, Inc.), 84 NLRB 563, affirmed by the Board in United Mine Workers of America,.
District 23,•et al. (West Kentucky Coal Company, et al. ), 92 NLRB 916.
Member Reynolds would adopt the Trial Examiner's recommended "make whole" order
for the reasons stated in his dissent in West Kentucky Coal Company, supra. However,
now deeming himself bound by the majority decision in that case and in the Colonial
Hardwood case, supra, he agrees that the Trial Examiner 's recommended "make whole"
remedial order should not be adopted.
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS, ETC.- 393
(b) Restraining or coercing Thomas Wood, Jess Perry, or Carl
Sullivan, or any other employee, of Gardner Electric Manufacturing
Company, its successors or assigns, in the exercise of their rights
to self-organization, to form, join, or assist labor organizations, to
bargain.collectively through, representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; or, in the right to
refrain from any or all of such activities as guaranteed in Section 7
of the National Labor Relations Act, as amended, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices and meeting hall of. the Respoiadeft-
United Electrical, Radio and Machine Workers of America, Local
1412, copies of the notice attached hereto and marked "Appendix
A,` which will be supplied by the Regional Director for the Twen-
tieth Region and which, after having been duly signed by an official
representative of the Respondent, United Electrical, Radio and
Machine Workers of America, Local 1412, and by the Respondents,
Sandra M. Waite, William B. Stevenson, and William Elconin, shall
be posted by them immediately upon receipt thereof and maintained
for a period of sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(b)'Mail to the Regional Director for the Twentieth Regioit,-sir`fli
cient copies of the foregoing notice (the number to be determined by
the Regional Director), for posting, the Employer willing, on bulletin
boards or other customary places for posting notices at its plant and
maintaining thereon for a period of sixty (60) consecutive days there-
after. Copies of said notice, to be furnished to the Respondents by
the Regional Director, shall, after having been duly signed by the
Respondents, be forthwith returned to the Regional Director for such
posting.
(c) Notify the Regional Director for the Twentieth Region (San
Francisco, California), in writing within ten (10) days from the date
41n the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals Enforcing."
:394 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
of this Order what steps the Respondents have taken to comply
herewith.
Appendix A
NOTICE TO ALL MEMBERS OF UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA, LOCAL 1412, AND TO ALL EMPLOYEES OF
GARDNER ELECTRIC MANUFACTURING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT by any strike; slowdown, work stoppage, or threat
of strike, slowdown, or work stoppage, or in any other manner,
cause or attempt to cause GARDNER ELECTRIC MANUFACTURING
COMPANY, its officers, agents, successors, or assigns to discriminate
against Thomas Wood, Jess Perry, or Carl Sullivan, or any other
employee in violation of Section 8 (a) (3) of the. Act by reducing
or taking away from Thomas Wood, Jess Perry, or Carl Sullivan,
or any other employee, his seniority rights or in any other manner
whatsoever cause or attempt to cause GARDNER ELECTRIC MANU-
FACTURING COMPANY, its officers, agents, successors, or assigns, to
discriminate against Thomas Wood, Jess Perry, or Carl Sullivan,
or any other employee in regard to their hire or tenure of employ-
ment or of any term or condition of employment.
WE WILL NOT restrain or coerce Thomas Wood, Jess Perry, or
Carl Sullivan, or any other employee of GARDNER ELECTRIC MAN-
UFACTURING COMPANY, its successors or assigns, in the exercise of
their right to self-organization, to, form, join, or assist labor
organizations, to bargain collectively through representatives of
their own choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or in their right to refrain from any or all such activities
as guaranteed in Section 7 of the National Labor Relations Act
as amended, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA, LOCAL 1412,
By ---------------------------------------
(Representative ) ( Title)
SANDRA M. WAITE.
WILLIAM B. STEVENSON.
WILLIAM ELCONIN.
Dated--------------------
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS- ETC. '395
This-notice must remain posted for 60" days from the'date'heredf,
'a nd must not be altered, defaced, or covered by any other material.
Intermediate Report 'and Recommended Order
STATEMENT OF THE CASE
Upon amended charges duly filed by Thomas Wood, an individual, and by
Gardner Electric Manufacturing Company, hereinafter called the Employer,
on November 24 and November 22, 1950, against United Electrical, Radio and
"Machine Workers of America, Local 1412, hereinafter called the Union, and, in
the charge filed by the Employer, also against Sandra M. Waite, William B.
Stevenson, and William Elconin, the General Counsel for the National Labor
Relations Board, hereinafter called the General Counsel and the Board, respec-
tively, by the Regional Director for the Twentieth Region (San Francisco,
California), issued his consolidated complaint dated February 20, 1951, alleging
that the Union had violated Section 8 (b) (1)' (A) and 8 (b) (2) of the Labor
Management Relations Act, 1947, 61 Stat. 136, hereinafter called the Act,
affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
Copies of the consolidated complaint, amended charges, and notice of hearing
were duly served upon the respective Respondents.
With respect to the unfair labor practices, the complaint alleged in substance
that on about September 29, 1950, and at various times thereafter, the Re-
spondents attempted to cause the Employer to discriminate against Thomas
Wood, Jess Perry, and Carl Sullivan because they were not members in good
standing of the Union for reasons other than failure to tender periodic dues;
that on October 30 the Respondents threatened to cause and did cause a work
stoppage at the Employer's plant in support of its demand that the Employer
deprive said Wood, Perry, and Sullivan of their seniority because they were
no longer members in good standing of the Union for reasons other than the
failure to tender their periodic dues and that said work stoppage continued
until November 8, 1950; and that by such threat and strike the Respondents
prevented said Wood, Perry, and Sullivan from working for the said Em-
ployer, although they were ready, willing, and able to work and that this
caused them a loss of earnings. No answer was filed.
Pursuant to notice, a hearing was held at San Francisco, California, on
March 5, 1951, before me as the duly designated Trial Examiner. The General
Counsel, the Employer, and the Respondents were represented by counsel: At
the outset of the hearing, counsel for the Respondents stated that they did not
intend to file an answer and that they did not intend to participate actively
in the hearing. Asked if the Respondents then intended to confess the com-
plaint, counsel for the Respondents stated : "We are not contesting and at the
same time we are not expressly conceding any element of the charge or the
complaint." When asked if the Respondents understood that the effect of
their failing to file an answer or put in any defense might result in a default
order, counsel for the Respondents stated that it was understood, that the
Board and its agents had that power if it saw fit. The General Counsel ad-
duced some evidence substantiating the statements in the complaint. In accord-
ance with their announced intention, the Respondents did not participate fur-
ther in the hearing. Counsel for the General Counsel moved to default the
Respondents on the basis of the undenied complaint and,the evidence adduced.
I granted the motion and made certain findings of fact, conclusions of law,
and a recommended order upon the record. Because counsel for the Respondents
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that they did not intend to participate further and because none of the
other parties requested time in which to file briefs, no time was fixed for the
filing thereof, and none has been offered or received. This Intermediate Report
and Recommended Order supersedes that stated on the record.
Upon the entire record in the case and from my observation of the witnesses,
I male the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, Gardner Electric Manufacturing Company, is a California
corporation with its principal office located in Emeryville, California, where it
is engaged in the business of manufacturing and distributing electrical trans-
formers. In the operation of its business, the Employer, during the fiscal year
ending July 1, 1950, made purchases of steel, copper, magnet wire, and other
materials valued in excess of $500,000, of which amount approximately 66
percent was shipped to the Employer from points outside the State of California,
and during the same period the Employer made sales of its products in excess
of $1,000,000, of which amount approximately 14 percent was shipped by it to
points outside the State of California.
II. THE. ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of America, Local 1412, is a
labor organization admitting to membership employees of the Employer
III. THE UNFAIR LABOR PRACTICES
The Union and Employer entered into an agreement with respect to the em-
ployees of the latter on September 8, 1950. This contract contained the following
provisions:
Article I
UNION RECOGNITION AND MEMBERSHIP
Section 2. Only members in good standing of the Union shall be employed
by the Company . . .
.Section 3. The Company, for the employees, shall deduct from the first
pay4check of each month the union dues, initiations, fines, and assessments
and promptly remit same to the Union office.
Sections 2 and 3 of the Agreement dated August 1, 1945, and quoted above,
became inoperative by operation of law on July 31, 1948, the expiration date
of that contract. It is agreed that they shall be reinstated as above written
if during the life of this Agreement that should become legally permissible
by either (1) any ruling or decision of the National Labor Relations Board
or lower Court if the parties agree that such ruling or decision has such
effect; or (2) by the United States Supreme Court; or (3) by the Congress
of the United States.
Check-off. Pending such changes in the legality of Section 3, the Com-
pany shall deduct .union dues and initiation fees upon presentation of signed
authorizations .. .
UNITED ELECTRICAL, RADIO 'AND MACHINE WORKERS, ETC. 397
Article II
SENIourry
s s s * s s s
Section ., 5. Seniority shall be lost only :
• t # t # i s
(C): When an ;employee- fails, to, keep himself in. good standing ',in the
Union.
At no time was a union-shop election held in accordance with the provisions of
the Act. On September 22, 1950, the Union expelled employees Thomas Wood,
Jess Perry, and Carl Sullivan from membership for reasons other than nonpay-
ment of periodic dues or initiation fees. On September 29, 1950, the Union,
over the signature of the Respondent Stevenson, as president , wrote a letter to
the Employer notifying it of the expulsion and directing the Employer to discon-
tinue to check off union dues for Wood, Perry, and Sullivan.
The Employer replied on October 10 that it had the written authorization cards
signed by the said three employees and that the authorization cards stated :
"Revocation shall be effective only if I give you and Local 1412 . . . written
notice by individual registered mail. . . ." The Employer then stated that, since
such revocation.,had.not, been •receiyed,.,it could not'comply with the Union's
request and that it was remitting the dues for the said three persons along with
the others in the usual checkoff list. On October 10 the Employer wrote to the
.shop committee of the Union : -
With reference to our meeting of Monday afternoon, the company wishes
to advise the Union that we have not laid off Thomas Wood, Carl Sullivan,
or. Jess Perry, that they are still on the payroll and employed, therefore no
vacancies exist.
These employees have plant seniority and since plant seniority has never
been used to replace existing employees on their jobs, we will not post these
particular jobs as existing openings.
On October 20, the Union, again over the signature of the Respondent Steven-
son, as president, wrote to the Employer saying that the latter might disregard its
letter of September 29, 1950; that Wood, Sullivan, and Perry were no longer in
good standing with the Union ; and that in accordance with article 11, section 5
(C) (apparently of the contract) the Union demanded that the seniority of
the said employees, be declared lost and that the effective seniority date for the
said employees should henceforth be September',=,' 1950.
The Employer replied to this letter on October 23, refusing to comply with the
request on the ground that it would contitute a discrimination against the three
employees. The result of a loss of seniority would have been loss of employment.
On October 30, 1950, the Respondents, and each of them, threatened to cause
.and did cause a work stoppage at the Employer's plant in support of its demand
that the Employer deprive said three employees of their seniority.' Thomas
Wood individually was prevented from working when the Respondent Stevenson,
.together with Gordon Apegaile, a steward of the Union, and Louis Pastrone, a
member of the Union, told Wood he could not work and pulled the main switch
.on his machine. The strike lasted until half an hour after starting time on
November 8, 1950, at which time the plant, which had not operated since the
a This finding Is based on the undenied allegation In the complaint.
398 DECISIONS- OF NATIONAL. LA'BOR' RELATIONS-BOARD
commencement of the strike, resumed work, and the three employees whose-
seniority was attempted to be affected by the strike returned to work. The
strike prevented all three employees from working, although they were ready,..
willing, and able to work?
From the foregoing, it is apparent that the Respondents had no legal right
to cause any employee of the Employer to lose either his seniority or job, whether
for .nonpayment of union dues or otherwise. The provision in the contract for
the discriminatory deprivation of seniority. is in conflict with. the provisions.
of the Act and is void. By attempting to cause a loss of employee seniority on
October 20 and thereafter and by backing up their demands with a strike, the-
Respondents restrained and coerced the said employees in the exercise of the.
rights guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1) (A),
and attempted to cause the Employer, in violation of Section 8 (a) (3), to dis-
. criminate against said employees and attempted to cause the Employer to dis-
criminate against said employees whose membership in the Union was terminated..
on a ground other than their failure to tender their periodic dues and initiation
fees uniformly required•as a condition of acquiring or retaining membership, in:
violation of Section 8 (b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring
in connection with the operations of the Employer, described in Section I, above,.
have a close, intimate, and substantial relation to trade, traffic, and commerce-
among the several States, and tend to lead to and have led to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in and are engaging.
in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action which I find will effectuate-
the policies of the Act.
Since it has l,t en found that the Respondents deprived Thomas Wood, Jess
Perry, and Carl Sullivan of the opportunity to work in accordance with their
choice, and prevented them from working between October 30 and November 8„
1950, it will be recommended that the Respondents make the said Wood, Perry,
and Sullivan whole for any loss of pay they may have suffered because of the
Respondents' unlawful conduct.
CONCLUSIONS OF LAW
1. United Electrical, Radio and Machine Workers of America, Local 1412..
is a labor organization within the meaning of Section 2 (5) of the Act. .
2. Gardner Electric Manufacturing Company is engaged in commerce within,
the meaning of Section 2 (6) and (7) of the Act.
3. By attempting to cause the Gardner Electric Manufacturing Company to
discriminate in regard to the hire and tenure of employment of Thomas Wood,
Jess Perry, and Carl Sullivan, in violation of Section 8 (a) (3) of the Act, and
attempting to cause the Employer to discriminate against said employees whose.
membership in the Union was terminated on a ground other than their. failure
to tender the periodic dues and the initiation fees required as a condition of
acquiring or retaining rnernbership, the Respondents engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
2 This finding is based in part on the undenied allegation in the complaint-
.. GREEN BAY. DROP FORGE CO. 399•
.4..,By attempting to deprive Thomas Wood, Jess Perry, and Carl Sullivan of
-their seniority and by preventing them from working for the period between
-October. 30 and November 8, 1950, the Respondents did restrain and coerce and
are restraining and coercing said employees in the exercise of the rights guar-
anteed them in Section 7 of the Act , and thereby the Respondents are engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
GREEN BAY DROP FORGE Co. and WALTER LASECKI
LOCAL #186, OF FARM EQUIPMENT AND UNITED ELECTRICAL RADIO,
AND MACHINE WORKERS OF AMERICA and WALTER LASECKI. Cases
Nos. 13-CA-545 and 13-CB-96. July 23, 1951
Decision and Order
On April 13, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief. The Respondent Union
filed a reply brief.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
our decision.
We find, contrary to the Trial Examiner, that Lasecki's discharge for.
failing to maintain his membership in good standing in the Respond-
ent Union pursuant to the Respondent's union-shop contract was viola-
tive of the Act. Section 8 (a) (3) of the Act authorizes, under speci-
fied circumstances, the execution of collective bargaining agreements
which "require as a condition of employment membership therein on or
after the thirtieth day following the beginning of such employment or
1 As the record , exceptions , and briefs adequately present the issues and positions of the
parties, the Respondent Union's request for oral argument is denied.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Houston , Murdock , and Styles].
95 NLRB No. 58.